M/S.Wonder Laminates Pvt.Ltd vs Cce-Kol-Vii

Appeal No.Ex.Ap.331/11 (Arising out of Order-in-Appeal No.05/Kol-VII/2011 dated 25.01.2011 passed by the Commissioner(Appeal-I) of Central Excise, Kolkata.)

FOR APPROVAL AND SIGNATURE

HONBLE DR. D.M. MISRA, MEMBER(JUDICIAL)

1. Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the CESTAT(Procedure) Rules, 1982 for publication in any Authorative report or not?

3. Whether Their Lordship wishes to see the fair copy of the Order?

4. Whether Order is to be circulated to the Departmental Authorities?

M/s.Wonder Laminates Pvt.Ltd. Applicant (s)/Appellant (s) Vs.

CCE-KOL-VII

Respondent (s)

Appearance:

Shri N.K.Chowdhury, Advocate for the Appellant

Shri A.Roy, Supdt.(A.R.) for the Revenue

CORAM:

Honble Dr. D.M. Misra, Member(Judicial)

Date of Hearing/Decision :- 26.02.2015 Date of Pronouncement :- 26.02.2015

ORDER NO.FO/A/75107/2015

Per Dr. D.M. Misra.

1. This is an Appeal filed against Order-in-Appeal No.05/Kol-VII/2011 dated 25.01.2011 passed by the Commissioner(Appeal-I) of Central Excise, Kolkata.

2. At the outset Shri N.K.Chowdhury, Ld.Advocate for the Appellant submits that the present Appeal is filed challenging the order of the Ld.Commissioner(Appeals), who has not considered their plea that once the duty along with interest has been discharged, the Appellant should be given an opportunity to pay 25% of the penalty imposed under Section 11AC of Central Excise Act, 1944. The Ld.Advocate submits that in the Order-in-Original, the Ld.Assistant Commissioner has observed that Central Excise duty of Rs.41,418/- + Rs.9,124/- relating to cess paid and appropriated along with interest of Rs.2,512/-. He submits that they should have been offered an opportunity of payment of penalty of 25% as per section 11AC of Central Excise Act, 1944 which was not given to them. In support he has referred to the judgement of Honble Gujarat High Court in the case of Commissioner of Central Excise & Customs, Surat-I vs. Harish Silk Mills  2010 (255) ELT 393(Guj.).

3. The Ld.A.R. for the Revenue reiterated the findings of the Ld.Commissioner(Appeals).

4. Heard both sides and perused the record. I find that only issue raised before this forum is that whether the Appellant should have been afforded an opportunity to pay 25% of the penalty amount imposed under section 11AC of CEA,1944, once they have discharged the duty and interest. The issue is no more res integra in view of the judgement of Honble Gujarat High Court in the case of Commissioner of Central Excise & Customs, Surat-I vs. Harish Silk Mills (supra). In the result, the impugned order is set aside and the matter is remanded to the adjudicating authority to consider the request of the Appellant and afford the opportunity to pay 25% of the penalty imposed under section 11AC of the Central Excise Act, 1944. Appeal is disposed of on above terms.

(Pronounced and dictated in the open court.)

SD/

(D.M.MISRA) MEMBER(JUDICIAL) sm

3 Appeal No.Ex.Ap.331/11